2022 (5) TMI 1374 - AT - Income Tax

Disallowance(s) of administrative service charges 40A(2)(a) (b) r.w.s. 37(1) - AO invoking the impugned disallowed for want of a valid service agreement dated 02.02.2005 which was only applicable for a period of seven years - Revenue's case before us is that the assessee had not filed the recipient's computation as well as return(s) coupled with the alleged addendum to the foregoing services agreement and therefore, the impugned disallowance is liable to be upheld - HELD THAT - We make it clear that the assessee had indeed filed its recipient's tax returns in support of its argument that the impugned Section 40A(2)(a) (b) disallowance does not survive any more once both these parties stood assessed at the maximum marginal rate in light of the CBDT's age old circular No. 6/P dated 06.07.1968 to this effect. This is in addition to the fact that it has also sought to prove its addendum to the impugned agreement (supra) extending the period of operation thereof covering all the instant three assessment years for the first time only. Faced with this situation, we deem it appropriate to restore the assessee's instant identical first and foremost grievance back to the Assessing Officer for his afresh adjudication as well as necessary factual verification as per law within three effective opportunities of hearing. Ordered accordingly. The assessee's corresponding grounds are treated as allowed for statistical purposes.

Summary

Issues Involved:
1. Disallowance of administrative service charges under Section 40A(2)(a) & (b) read with Section 37(1) of the Income Tax Act, 1961.
2. Credit of foreign tax paid under Section 90 of the Income Tax Act.
3. Deduction of secondary and higher education cess.

Detailed Analysis:

1. Disallowance of Administrative Service Charges:
The primary issue revolves around the disallowance of administrative service charges paid by the assessee to M/s. Tata AutoComp Systems Ltd. (TACO) under Section 40A(2)(a) & (b) read with Section 37(1) of the Income Tax Act, 1961. The assessee had claimed administrative service charges amounting to Rs. 3,04,14,743/-, Rs. 4,68,19,249/-, and Rs. 5,55,82,030/- for the assessment years 2010-11, 2011-12, and 2012-13 respectively, based on an administrative service agreement dated 02.02.2005.

The CIT(A) affirmed the Assessing Officer's (AO) disallowance, noting that the assessee failed to provide cogent evidence to substantiate the reasonableness and necessity of the payments. The CIT(A) referenced previous years' assessments, where similar disallowances were made due to lack of evidence, and observed that the agreement's term had expired. The CIT(A) emphasized that the onus was on the assessee to prove that the payments were not excessive or unreasonable, which the assessee failed to do.

The Tribunal noted that the assessee had filed additional evidence, including the recipient entity's income tax returns, and an addendum to the service agreement extending its duration. The Tribunal decided to restore the issue to the AO for fresh adjudication and factual verification, allowing the assessee's grounds for statistical purposes.

2. Credit of Foreign Tax Paid:
The assessee's counsel indicated that they do not wish to press the grounds related to the credit of foreign tax paid under Section 90 of the Income Tax Act. Consequently, this ground was rejected.

3. Deduction of Secondary and Higher Education Cess:
Similarly, the assessee did not wish to press the additional ground seeking deduction of secondary and higher education cess. This ground was also rejected.

Conclusion:
The Tribunal partly allowed the assessee's appeals for statistical purposes, restoring the primary issue of disallowance of administrative service charges to the AO for fresh adjudication and factual verification. The grounds related to the credit of foreign tax paid and deduction of secondary and higher education cess were not pressed by the assessee and were accordingly rejected. The order was pronounced in the open court on 6th May, 2022.